Business Litigation

In the Southern District of New York

Latest from Business Litigation

Compelling a class action plaintiff to arbitrate in a private forum instead of litigating in federal can be a huge victory for a defendant.  And with the prevalence of form documents containing arbitration clauses, fights over arbitrability are common.  In Cooper v. Ruane Cunniff, an opinion that was noted as a Decision of Interest on the Southern District web site, Judge Pauley came down strongly in favor arbitration—he enforced an arbitration provision in an employment…
Judge Engelmayer’s opinion in In Re Interest Rate Swaps Antitrust Litigation dissects one of the most interesting questions in anti-trust law—when does an anti-trust complaint fail because a plaintiff only alleges parallel conduct by companies acting in their own self-interest, as opposed to a conspiracy or agreement between them to act in concert. “The crucial question…is therefore whether the challenged conduct stems from independent decision, or from an agreement, tacit or express.” This crucial question,…
It’s very common in commercial contracts for one party to agree to obtain insurance coverage for its counter-party. But according to Judge Rakoff, the scope of that coverage may be less than meets the eye. In The City of New York v. Crothall Healthcare, the City hired Crothall to provide janitorial services to the city’s hospitals. Their contract required Crothall to procure insurance covering Crothall the City for any claims arising from Crothall’s services.…
In Schwab v. E*TRADE, Judge Koeltl sent packing a proposed class action plaintiff who was sure E*TRADE misrepresented how they processed his stock trades, but failed to give the detail necessary to make his point. Brokers like E*TRADE are paid commissions by their customers, and also are paid rebates by the market makers and exchanges that execute their customers’ securities trades. These rebates, known as payments for order flow, are perfectly legal although heavily regulated.…
When sophisticated investors carefully document their relationship, it’s unusual to see a claim for negligent misrepresentation. After all, sophisticated parties typically are only held to those commitments they agree to in writing. But as Judge Pauley’s opinion in Kortright v Investcorp teaches, unusual is not the same as never. Investcorp, a well-known investment adviser, agreed to provide seed capital to an up-and-coming fund, Kortright, by investing $50 million of its own capital and $40 million…
Here’s a pop a quiz, drawn from Judge Netburn’s Report and Recommendation in Borecki v. Raymours Furniture Co., Inc. Is the following arbitration provision in a contract between a store and its customer a broad or narrow arbitration requirement: “[A]ny claim, dispute, or controversy between you and us that in any way arises from or relates to the goods and/or services you have purchased or are purchasing from us (the “Purchases”), now or in the past,…
In The State of New York v. United Parcel Service, Inc., the State claimed that UPS illegally transported untaxed cigarettes from Native American reservations to New Yorkers. In ruling for the State, Judge Forrest walked a fine line in sanctioning UPS; she awarded damages, but denied the State’s request for injunctive relief, and a court monitor. Judge Forrest awarded $166 million to New York State and $81 million to New York City. Given UPS’s “high level of…
Judge Pauley’s opinion in LiquidX v. Brooklawn Capital, LLC is a good example of a company paying a steep price for trying to outwit its creditors. The Receivables Exchange (TRE), a financial startup that created an exchange for the purchase and sale of accounts receivable, was on the verge of a desperately needed round of financing. But on the eve of closing, TRE lost an important arbitration to a creditor, opening the door to similar…
A promise made is a promise kept—unless it is made over the phone under an ERISA plan.  So ruled Judge Oetken last week, in a dismissal of a doctor’s lawsuit to collect payment allegedly promised by a healthcare benefit plan administrator.  McCulloch Orthopedic Surgical Servs., PLLC, a/k/a Dr. Kenneth E. McCulloch v. United Healthcare Ins. Co. of New York, a/k/a Oxford, No. 14–CV–6989 (JPO) (S.D.N.Y. June 8, 2015). Dr. McCulloch, an orthopedic surgeon,…
Without waiver, discovery of bona fide privileged documents is usually a dead end. That principle would seem to be especially rock-solid when those documents are the subject of a subpoena addressed to adversary counsel in related litigation (in this case, to enforce a foreign judgment). But in Chevron v. Donziger, et al., a judgment enforcement action that has been anything but ordinary (here and here), Judge Kaplan ruled that where there is…